At one stage, the CJI even suggested ordering the Centre not to deport the refugees till the next date of hearing, but stopped short following objection from Additional Solicitor General Tushar Mehta who said it will have international ramifications.

Underlining that both the executive and the judiciary “cannot be totally oblivious” to the condition of women and children among the Rohingya refugees, the Supreme Court Friday said the crisis has thrown up an “extraordinary” situation and there is need to strike “a balance” between national interests and human rights while dealing with it.

Hearing a petition filed by two Rohingya Muslim refugees challenging the Centre’s move to deport them from the country at a time when tens of thousands of Rohingya are fleeing Myanmar, a bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said: “There has to be a broader humanitarian spectrum. National interests cannot be secondary. How to strike a balance…”

CJI Misra said “the state has a big role. The role of the state in such a situation has to be multi-pronged” since there are security, economic and humanitarian issues involved. The bench said it cannot turn a blind eye to the condition of women and children among the refugees. “Children and women do not know anything about it. As a Constitutional court, we cannot be totally oblivious to this. Similarly, we do not expect the executive to be oblivious of it either.” SC hasn’t given any reprieve, Rohingya will be deported: MHA

At one stage, the CJI even suggested ordering the Centre not to deport the refugees till the next date of hearing, but stopped short following objection from Additional Solicitor General Tushar Mehta who said it will have international ramifications. “There are international ramifications. As an executive, we understand our role in this. If any contingency will arise, they (petitioners) can come,” Mehta said, adding “We are sensitive to it … we know our responsibility.”

The bench recorded in the order that senior advocate Fali S Nariman, who appeared for the petitioners, had said that in case of any contingency, he will approach the court. Nariman contended that all Rohingya, be they Muslim or Hindu, were not terrorists and the government cannot pass a “blanket order”.

The bench said it will give the matter a “holistic hearing” from November 21. “We will not permit any emotional arguments. We are not going to be swayed. We will go by the letter of the law… We know the problem of the nation. We also know the problem of the people. We are only striving how to strike a balance.”

CJI Misra also sought to emphasise that he is only trying to provoke a “debate” and “debate is not a judgment”.
Nariman said protection under Article 21 is available even to non-citizens and no person can be deprived of the liberty granted under the Constitution and other statutes.

Referring to the Union Home Ministry order, he said though it says that the Myanmar issue might aggravate the security challenge, it does not say that all Rohingya are terrorists. Observing that Minister of State for Home Kiren Rijiju has given a statement on the government’s decision to deport all Rohingya from India, Nariman said, “Such an order ought not have been passed. This is the essence of the whole case.” He alleged that the government has been “speaking in two voices” on the issue, saying something outside the country and something else within.

Nariman said he has no objection to government agencies going after individual terrorist elements among the Rohingya but there cannot be a blanket order. He pointed out that there are also groups of refugees who are already protected in India like the minorities from Pakistan, Bangladesh and Afghanistan. The bench said “Constitutional ethos makes us lean sympathetically towards humanitarian issues”.

Earlier, the Centre, describing the Rohingya as “illegal immigrants”, had told the Supreme Court that their influx into the country “using the porous border between India and Myanmar” and their continued stay here was “seriously harming the national security of the country”.

The government said it “has contemporaneous inputs from security agencies and other authentic material indicating linkages of some of the unauthorised Rohingya immigrants with Pakistan-based terror organisations and similar organisations in other countries”.

Their “illegal influx”, the Centre said, started from 2012-13 — the UPA II was in power at the Centre then — and requested the court to leave the issue to the decision of the executive.